United States Court of Appeals For the Ninth Circuit

INTHE °
United States
Girenit Court of Appeals

Hor the Ninth Circuit

UNITED STATES OF AMERICA,
Plaintiff and Appellee,
VB.

JESSE H. SHREVE, ARCHIE C.
SHREVE, DANIEL H. SHREVE,
GLEN O. PERKINS, and
W. C. EVANS,

Defendants and Appellants.

No. 8781

REPLY BRIEF OF APPELLANTS
JESSE H. SHREVE and ARCHIE C. SHREVE

LESLIE C. HARDY,

Attorney for Appellants,

Jesse H. Shreve and Archie C. Shreve,
605 Title & Trust Building
Phoenix, Arizona
GEORGE H. SHREVE,
| Washington Building,
: Los Angeles, California

On the Brief.

EEE vena renee ene

INDEX

TABLE OF CASES

Atchison, T. & S. F. Ry. Co., 65 Sowers, 213 U. ne

poeeecdroup. Ct. Rep. 397, 53 L. Ed. 695...............-.--.------ 10
Seeemmievs. U. S., 266 Fed. 471....__.......22.---neeeeeeeee eee 5
Coulston vs. U. S. (CCA10) 51 Fed. (2nd) 178................ 5
Creel vs. U. S. (CCA81) 21 Fed. (2nd) 690.........00.0000...... 4
momop vs. U. S., 165 Fed. 486..........0...... cc ecee eee eeeeeee 5
Greenbaum vs. U. S., 80 Fed. (2nd) 1138...0..0000.000000.0coo2.. ihes3
fieevs. U. S. (CCA9) 97 Fed. (2nd) 710....................... 8
Meese L. S., 206 Ked, 179. ._-_ 2... ccccceccccoccecenecaccceccccceccccess 10
Medorne vs. U.S., 17 Fed. (2nd) 246.......002..0.00. 2. 13, 14
Pabst Brewing Co. vs. E. Clemens Horst Co.,

1 0 |. 1S 13
Meters OU). ., L6L U. 8. 29.2... ccececcee cece cceee ee cenee eee 5
Shreve vs. U. S., 77 Fed. (2nd) 2.....0.0000000020ee ee... 5, 13, 14
merscoevs. U. S., 80 Fed (2nd) 289..............---..--.-1 12; 14
Mememetcinvs. U. S., 273 U. S. 77_....0----.ccccssececcecees-ccceseeecenses 5)
Young vs. Sou. Pac. Ry. Co., 182 Cal. 369, 190 Pac. 36...... 19

TABLE OF STATUTES
Mme Title 28, USCA... ee ees eseecceeeceeseeeenenseee 2

Memos, Tithe 18, USCA... nn. cceecececccecececcecncenensneceeceres 4
Meme Tithe 28, USCA... ....--.-c.-.sccssscscssesecseassessecansnaenees 9

IN THE
United States
Girenit Court of Appeals
Hor the Ninth Circuit

UNITED STATES OF AMERICA, \
Plaintiff and Appellee,
Vs.

JESSE H. SHREVE, ARCHIE C. No. 8781
SHREVE, DANIEL H. SHREVE, :
GLEN O. PERKINS, and
W. C. EVANS,

Defendants and Appellants.

REPLY BRIEF OF APPELLANTS
JESSE H. SHREVE and ARCHIE C. SHREVE

Counsel for the Government, in their brief sug-
gest that appellants’ (defendants’) opening brief does
not contain a sufficient statement of the facts or

' evidence. They do not point out wherein defend-

_ ants’ brief is insufficient in this respect, nor do they

_ supply the asserted insufficiency. Counsel think that

the statement of the facts in defendants’ opening

_ brief is sufficient to present a fair understanding of

_ the case, measured by the prescribed page limitation
of their brief and the size of the record.

Counsel for the Government apparently for the

(1)

(2)

lack of a more convincing reply, meet some of the
questions raised by relying upon the often asserted
expressions like “no prejudice is shown’. Illustra-
tions are found on pages 4, 9 and 19 of their Brief.
They supplant a plea of defendants “by asking that
justice be done in this case’ p. 26). The thought
had not occurred to defendants or their counsel that
justice will not be finally done. They say again that
because of “lack of any prejudicial error, the judg-
ment should be affirmed” (p. 32). That is often the
refuge of prosecutors who, when confronted with the
careless manner in which they proceeded in the Court
below, implore the reviewing Court to condone that
carelessness by finding the error harmless rather
than prejudicial. It is not begging the question to
say that defendants surrounded themselves with ev-
ery protection accorded them by well conceived and
long applied principles of law when they disclaimed
the guilt charged to them by the indictment. Coun-
sel for the Government having ignored these prin-
ciples, with the sanction of the trial court, should
not now be heard to justify their conduct by invok-
ing amorphisms which themselves might also result
in depriving defendants of justice. Repeated re-
jection of wholesome principles of law often require
that justice prevail notwithstanding the verdict.

The Congress has said that this Court shall give
judgment after an examination of the entire record
‘without regard to technical errors, defects or ex-
ceptions which do not affect the substantial rights
of the parties” (Sec. 391, Title 28, USCA). The
errors asserted here go far beyond “technical er-
rors, defects or exceptions’, and because they do it
seems to us that the limitations of the statute last
quoted itself marks the point where harmless error

(3)

ends and prejudicial error begins. The errors we
have pointed out are not technical errors or de-
fects,—they are errors of substance which even the
most inexperienced practitioner would recognize and
avoid.

Counsel for the Government have brought them-
selves within the criticism of Coulston vs. U. S.
(CCA10) 51 Fed. (2nd) 178, 182, where it is said:

“To all of this, the appellee answers that
the jury convicted upon abundant evidence
and that the errors complained of were not
prejudicial. The same contention was made
to the Kighth Circuit Court of Appeals many
years ago, and in response thereto that Court
(Sanborn, Van Devanter, and Phillips sitting)
said: “The zeal, unrestrained by legal barriers,
of some prosecuting attorneys, tempts them to
an insistance upon the admission of incompet-
tent evidence, or getting before the jury some
extraneous fact supposed to be helpful in se-
curing a verdict of guilty, where they have
prestige enough to induce the trial court to
give them latitude. When the error is expos-
ed on appeal, it is met by the stereotyped ar-
gument that it is not apparent it in any wise
Influenced the minds of the jury. The reply
the law makes to such suggestion is: that, af-
ter injecting it into the case to influence the
jury, the prosecutor ought not to be heard to
say, after he has secured a conviction, it was
harmless. As the appellate court has not in-
sight into the deliberations of the jury room,
the presumption is to be indulged, in favor of
the liberty of the citizen, that whatever the

(4)

prosecutor, against the protest of the defend-
ant, has laid before the Jury, helped to make
up the weight of the prosecution, which re-
sulted in the verdict of guilty’”’.

ARGUMENT
FIRST
(Appellee’s Brief, p. 2)

Government counsel, in order to avoid the duplic-
ity of the indictment, are required, aS were we, to
parse the indictment in order that it may be under-
stood. An indictment should be free from such im-
perfection. If the indictment were a clear exposition
of a criminal pleading, it should not require explana-
tion to interpret it.

See. 556, Title 18, USCA, is inapplicable because
duplicity is more than a matter of form.

Creel vs. U. S., (CCA8) 21 Fed. (2d) 690.
SECOND

(Appellee’s Brief, p. 3)

Government counsel state that we do not point
out how defendants were prejudiced by the ruling
of the court on the insufficiency of the bill of par-
ticulars (p. 4). The bill itself points out the pre-
judice. It is exemplified by the next succeeding
Assignment of Error XXIV (appellants’ opening —
brief pps. 16-20). Prejudice is further pointed out
at other places in defendants’ opening brief. When
the Court ordered the bill of particulars, thus re- ©

(3)

versing the order of the trial court in denying it
(Shreve vs. U. S., 77 Fed. (2d) 2), this Court knew
that the information which counsel for the Govern-
ment refer defendants to, arising out of the previous
trials of the case, was then available to defendants.
The fact is counsel for the Government have, with
the trial court’s sanction, substituted their will for
the judgment of this Court and thus they have de-
prived defendants of something this Court said they
should have.

Ciafirdini vs. U. S., 266 Fed. 471, cited by Gov-
ernment counsel, is not in point, because the bill was
not ordered by the appellate court after the first and
before the second trial of the case as herein. Wong
fairs. U. S., 2738 U. S. T7, Dunlop vs. U. S., 165
U. S. 486, and Rosen vs. U. S., 161 U.S. 29, are
not in point because there the questions involved the
exercise of discretion by the trial court which the
Supreme Court refused to disturb.

THIRD
(Appellee’s Brief, p. 5)

| The testimony of the Government’s witness Fier-
_ stone did go beyond the last day of any indictment
allegation. The trial court instructed the jury that
such evidence could only be considered for the pur-
pose of determining intent (R. 876). Counsel for
the Government insist that the instruction is enough
| to authorize the testimony and point out that no
exception was taken to this instruction. Undoubt-
edly the testimony was admissible for the purpose
| of proving intent, but defendants were not informed
what testimony would be offered to prove intent,

|

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and therein partly lies the insufficiency of the bill
of particulars.

We agree with counsel for appellee “that acts
of the defendants and circumstances after the com-
mission of the crime, frequently point more con-
clusively and unerringly to the guilt of those accused
than do their prior acts” (p. 6) but nothing could
more perfectly point out the insufficiency of the
bill of particulars than the omission to specify the
evidence which would be relied upon to constitute
those acts.

FOURTH
(Appellee’s Brief, p. 6)

Under this section of their brief, Government
counsel attempt to meet the assignments of error
relating to the refusal of the trial court to permit
defendant Archie C. Sdreve to testify to conversa-
tions opened by Government witnesses Perkins and
Hobbs concerning him and his co-defendant, Jesse
H. Shreve (Appellant’s opening brief, pps. 20-40).
Government counsel state that conversations cannot
be opened on cross-examination and then used as a
basis for introducing self-serving statements of the
defendants (Appellee’s brief, p. 7). Again, coun-
sel misapply the law of self-serving statements. We
have pointed out the law and its true application
(Appellants’ Brief, p. 32-36).

The fact that the conversations were brought out
on cross-examination does not alter the rule of the
right of defendants to explain or give their version
of the conversations. Perkins was still a Govern-

(7)

ment witness, although testifying on cross-examina-
tion. Besides, he did not tell the whole story on
direct examination. His narrative was then limited
to the defendant Jesse H. Shreve (R. 615, 621, 622,
623). On cross-examination he associated defend-
ant Archie C. Shreve with the conversations (R.
641-42) and then, as we have shown in the opening
brief (R. 30-37) the defendant Archie C. Shreve
should have been permitted to give his version of
those conversations. The jury in arriving at its
verdict must have considered not only the testimony
of Perkins on direct examination but also on cross-
examination.

Government counsel assert that the testimony of
the defendant Archie C. Shreve was an attempt to
put in defense matters by way of self-serving state-
ments instead of calling the defendant Jesse H. Shreve
to testify on his own behalf (Appellee’s Brief, pps.
10-11). We know of no rule, and we have been un-
able to find one, which deprives a defendant from
receiving the benefits of his co-defendant’s testi-
mony. The correct conclusion is that the defendant
Arcdie C. Shreve should have the same right to
testify both for himself and his co-defendant as had
Perkins and Hobbs the right to testify against both
of them.

With regard to defendants’ offer of proof, Gov-
ernment counsel say appellants failed to ask for any
rulings upon this offer and the Court made none
(Appellee’s Brief, p. 10). How could the trial court
make a ruling upon something he would not hear?
(R. 790). In view of the trial court’s attitude, the
defendants were hard pressed to preserve the record

_ at all and undoubtedly went farther than they were

required.

(8)

The facts are that Perkins and Hobbs, as Gov-
ernment witnesses, opened and gave testimony con-
cerning conversations with both defendants. Then,
under the authorities cited (Appellants’ opening
brief, pps. 32-36) defendants were entitled to give
their version of the conversations.

Cf. Hills vs. U. S. (CCA9) 97 Fed. (2d) 710.

The conversations must have been material, oth-
erwise Counsel for the Government would not have
elicited them. When they say that “the witness for
defendant was permitted to go as far in his testi-
mony as the witness for the Government” ( Appel-
lee’s Brief, p. 13) they overstate the record as will
appear by comparing the testimony of Perkins (R.
641-642) and Hobbs (389-392) with defendants’
offers of proof (Appellants’ opening brief, appen-
dix, pps. 1-15).

Appellee, at pages 14 and 15 of their brief, seek
to justify the admission of Government’s exhibit 207
(R. 722-727) because, as counsel for the Government
say, the defendants and Dan Shreve, Glen Perknis,
John Hobbs and J. G. Cash all had a part in de-
vising the scheme. That is a curious justification
in view of the objection that was made to admission
of the exhibit in evidence (R. 723) and as assigned
as error and briefed (appellants’ opening brief, p.
38-40).

FIFTH

(Appellee’s Brief, p. 15)

Counsel for the Government have not treated
these assignments of error (Appellants’ opening

(9)

brief, pps. 41-49) with the consideration their im-
portance merits. The instruments embraced by the
assignments of error, and the testimony relating to
them, fill a large part of the record (Appellants’
opening brief (p. 50, footnote 21). The resulting pre-
judice is not denied by Government counsel. They
rely in justification upon Section 688, Title 28,
USCA (Appellee’s Brief, p. 16). That section has
nothing whatever to do with these instruments be-
cause they are solely records of local County Re-
corders. Section 688, supra, as we have stated in
appellants’ opening brief, (P. 50, foot note 22) per-
tains only to foreign records, that is records of states,
territories, and possessions of the United States other
than the state of the forum, as these here are. Sec.
688, supra, provides:

“All records and exemplifications of books,
which may be kept in any public office of any
State or Territory, or of any country subject
to the jurisdiction of the United States, not
appertaining to a court, shall be proved or
admitted in any Court or office in any other
State or Territory, or in any such country, by
the attestation of the keeper of the said records
or books, and the seal of his office annexed, if
there be a seal, together with a certificate of
the presiding justice of the court of the county,
parish, or district in which such office may be
kept, or of the governor, or secretary of state,
the Territory or country, that the said testa-
tion is in due form, and by the proper officers.
If the said certificate is given by the presiding
justice of a court, it shall be further authen-
ticated by the clerk or prothonotary of the
said court, who shall certify, under his hand

(10)

and the seal of his office, that the said presid-
ing justice is duly commissioned and qualified;
or, if given by such governor, secretary, chan-
cellor, or keeper of the great seal, it shall be
under the great seal of the State, Territory, or
country aforesaid in which it is made. And
the said records, and exemplifications, so au-
thenticated, shall have such faith and credit
given to them in every court and office within
the United States as they have by law or
usage in the courts or offices of the State,
Territory, or country, as aforesaid, from which
they are taken.”

Contrary to the statement of Gevornment coun-
sel, the last sentence of the foregoing statute also
applies to foreign records, as the words which we
have italicized unquestionably demonstrate.

The statute was enacted to effectuate Section 1
of Article 4 of the Federal Constitution (the full
faith and credit clause) and that provision of the
Federal Constitution pertains only to acts, records
and judicial proceedings of other states.

Atchison, T. & S. F. Ry. Co., vs. Sowers, 213
U. S. 55, 29 Sup. Ct. Rep. 397, 53 LL. Ed. Gam

Myres vs. U. S., 256 Fed. 779, 728, cited by coun-
sel for the Government, helps their position none
because that decision treats upon the question of
practice rather than evidence, but, if Government
counsel insist that it supports their position, then |
it is contrary to the statute itself and the decision
of the Supreme Court in Atchison, T. & S. F. Ry.
Co., supra.

(It)
SIXTH—SEVENTH
(Appellee’s Brief, pps. 16-18)

These sections of Appellee’s Brief are met by
the arguments presented on the question in appel-
lants’ opening brief (pps. 59-66 and 66-88).

Counsel for the Government (p. 16) state:

“In the first place, the witness Watt testi-
fied that he did not rewrite any of the books
of the Security Building & Loan Association
(847). This is the only company involved in
the first three counts of the indictment’.

That statement does not square with the testi-
mony of the witness Watt. He testified:

“T did not rewrite any books of the Se-
curity Building & Loan Association, except
trace entries in the Building and Loan books
which pertained to the Century Investment
Trust or the Arizona Holding Corporation.
I traced them from the rewritten books of the

: Centry Investment Trust.” (R. 347).

In addition, the witness Watt testified: ‘These
rewritten entries in the Century Investment Trust
_had a bearing thereafter upon the books of the Se-
| curity Building & Loan Association; they had a
| bearing before that time, if I understand your ques-
| tion correctly.” (R. 349).

: The defendant, Archie C. Shreve testified as
| follows:

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“T heard the testimony of R. F. Watt, wit-
ness for the Government, that he rewrote the
books. I did not direct him to rewrite these
books. I don’t know anything about the re-
writing of these books. I never heard tell of
the books being rewritten before the trial of
this case in Tucson in 1934. That is the first
time I ever knew of these books being re-
written . CR. 17%, 7S).

Assuming, as stated by counsel for the Govern-
ment (p. 18) that the opinion on the former appeal
became the law of the case, nevertheless, that opin-
ion is based upon the assumption that the defend-
ants controlled the corporations named in the in-
dictment. The law of the case announced in the
decision on the former appeal assuredly does not
bind the defendants for unauthorized acts of the
Government witness Watt. In rewriting these books,
he testified: “To a great extent, I relied upon in-
formation I found myself in order to rewrite these
books” (R. 345). He testified that in rewriting the
books, that neither defendant requested him to re-

write these books or counseled with him in rewrit- ©

ing them (R. 347). These acts of Watt take his
evidence and these books beyond the law of the case.
They are the personal acts of Watt himself as a

result of which they bring into the record hearsay :

transactions, which were neither directed nor con-
trolled by the defendants and which carry them
beyond the decision on the former appeal thereby
rendering them objectionable as hearsay transactions

under the decisions of this Court in the following |

cases:

Wilkes vs. U. S., 80 Fed. (2nd) 285

(13)
Osborne vs. U. S.. 17 Fed. (2nd) 246
Greenbaum vs. U. S., 80 Fed. (2nd) 113

Pabst Brewing Company vs. E. Clemens Horst
Company, 229 Fed., 913.

EIGHTH
(Appellee’s Brief, p. 19)

This section of Appellee’s Brief refers to assign-
ments of error which relate to admission in evidence
of records of the First National Bank of Prescott.
Defendants were neither officers, directors nor em-
ployees of that Bank. (R. 300, 324, 337).

These were entries of a bank wholly disassociat-
ed from the indictment and defendants. There is
nothing to show that these defendants “made such
entries or caused them to be made or assented
thereto”, which this Court on the former appeal held
was essential to show before these records were ad-
missible. (Shreve vs. U. S., 77 Fed. (2nd) 2, 7).
Besides the records as admitted were hearsay trans-
actions. (R. 300, 309, 312, 313).

}

_ Treating upon Government’s Exhibit 84, counsel
for the Government say that “The appellants in their
brief have failed to point out how any prejudice
‘eould arise from the introduction of this Exhibit’
| (Appellee’s Brief, p. 19). If the exhibit created no
\prejudice against the defendants, then why did coun-
sel for the Government introduce it? It was pre-
judicial. The Exhibit was one of many hearsay
transactions relating to the First National Bank of
Prescott (R. 294-343) and, having been introduced,

(14)

counsel for the Government now say they are harm-
less. The transactions involved personal loans of
$10,000.00 each to Glen Perkins, J. G. Cash and
Joseph E. Shreve (R. 318, 314) totaling $30,000.00,
and were paid by drafts of the Securtiy Building
& Loan Association (Government’s Exhibit 96, R.
316) as testified to by Government’s witness Evans
(R. 315). If this evidence was without prejudice,
that does not compare with the importance Govern-
ment counsel attached to it because the fact is the
indictment was dismissed against Evans so as to
qualify him to testify with respect to these loans
and other transactions of the First National Bank
of Prescott (R. 181) after his conviction on the
former trial (R. 180).

On the former appeal this Court pointed out the
way to admit these records, but that decision was
ignored (Shreve vs. U. S., 77 Fed. (2d) 7). And
since there was no official connection between these
defendants and the First National Bank of Prescott,
the rule theretofore announced by this Court applied,
as typlified by the following cases:

Osborne vs. U. S., 17 Fed. (2d) 246.
Wilkes vs. U. S., 80 Fed. (2d) 285.

And again, in emphasis of the Wilkes Case, this
Court pointed to the error in admitting these records
of the First National Bank of Prescott in Greenbaum
vs. U. S., No. 8739, decided August 10, 1938. Since
that decision, and before, these records of the First
National Bank of Prescott were just as inadmissible
because of the objections taken to them against these
defendants as were the records of the Clarence Sand-
ers Store against the defendants Greenbaum.

(15)
NINTH
(Appellee’s Brief, p. 22)

The Government’s auditor and witness Schroeder
blew both hot and cold. When interrogated by coun-
sel for the Government he testified his audit was
made from books and records in evidence or, in some
instances, from books and records before the Court.
On cross-examination he testified to the contrary.

For illustration, let us take the York loan (R.
658 et. seq.) While he testified he did not neces-
sarily have to verify this transaction with the rec-
ords of the Commercial National Bank of Phoenix
(R. 683) still he couldn’t recall whether he did or
not (R. 683). He worked upon records of the Com-
mercial National Bank in connection with the audit
he prepared ‘in this case’ (R. 688, 684). He
couldn’t say specifically, but “probably in connec-
tion with some of the loans which I have testified
to today” (R. 684). He did not have his notes of
the audit of Commercial National Bank and he did
not know where they were (R. 684). Referring to
his work sheets, he said, “J imagine it is up to the
United States Attorney to see them”. (R. 684).

The Commercial National Bank is not a corpora-
tion named in the indictment, nor is it mentioned in
the bill of particulars, and, more important, not one
witness identified a book or record of that bank and
‘not one such book or record was offered or received
m evidence.

| The residium of Schroeder’s testimony is this:
the witness audited many books and records, some

|

(16)

of which were in evidence and some were not. The
witness selected such portions of that audit as, in
his opinion, suited his notion of the case for the
Government. Thus he became the judge of its relev-
ancy, but when defendants’ counsel sought to test
that relevancy in connection with his audit of the
books and records of the Commercial National Bank,
he did not have his audit notes (R. 684). Counsel
for the Government dismiss these assignments of
error, speaking metaphorically, with flourish of the
hand, but the conclusion follows from the whole
testimony of Schroeder that his audit and his tes-
timony based thereon were not in part at least con-
fined to books and records in evidence or before the
Court.

TENTH
(Appellee’s Brief, p. 23)

Admission in evidence of the Perry mortgage
(Exhibit 170, R. 547, 548) and the sheriff’s deed
(Exhibit 172, R. 551, 552) are still unjustified by
counsel for the Government. They say (p. 24) they
were not offered to show that no title was received
by the Blackburn deed (Exhibit 144, R. 517). Since
all these exhibits embraced identical property, then
the manifest purpose of the Blackburn deed was to
show that Blackburn conveyed property to the Ari-
zona Holding Corporation which Perry mortgaged to
the Yavapai County Savings Bank. No other reason
supports the introduction of the Blackburn deed in
evidence.

Counsel for the Government say that the pur-
pose of the evidence was to show, that when the

(17)

property was deeded to A. E. Reyburn, she mort-
gaged the property back to the grantor, which in
turn assigned it to Security Building & Loan Asso-
ciation and that the Reyburn mortgage was not a
first mortgage as represented by defendants (Appel-
lee’s Brief, p. 24). Strange, indeed, is this state-
ment. The deed to Reyburn (Exhibit 141, R. 512)
and the Reyburn mortgage (Exhibit 142, R. 514)
and the assignment of this mortgage (Ex. 143,
R. 516) embrace the identical property described in
the Blackburn deed (Exhibit 144, R. 517). Other-
wise it is pertinent to inquire, Why was the Black-
burn deed introduced in evidence?

Government counsel assert that the Reyburn mort-
gage (Ex. 142, R. 514) “was not a first mortgage
as represented by appellants” (p. 24). How did the
Government prove that statement? Simply by show-
ing that a party by the name of Perry mortgaged
property to Yavapai Savings Bank (R. 547, 548)
‘which Blackburn deeded to Arizona Holding Cor-
‘poration (R. 516, 517). Blackburn did not testify,
although his deed was introduced over objection by
‘defendants (R. 516, 517). Perry did not testify
either. His mortgage to Yavapai Savings Bank was
‘received in evidence upon testimony of the Secre-
tary of the bank that the bank “took a mortgage
on the property described in Government’s Exhibit
170 for identification, being a mortgage signed by
William Perry. “T recognize his signature” (R.
047). That is the limit of the testimony. It does
hot prove that Perry owned the property mort-
gaged. It does not prove that Blackburn did not
own it. It does not competently prove that the
“Reyburn mortgage was not a first mortgage”, as
stated by counsel for the Government (p. 24). The

|

(18)

Exhibit was inadmissible for every reason stated
in the objection to it (R. 547).

ELEVENTH
(Appellee’s Brief, p. 25)

Counsel for the Government by this section of
their brief leave unanswered Assignment XXVIII
(Appellants’ opening brief, p. 94) relating to the
hearsay testimony of the witness York unless state-
ments like “It may well be the understanding of the
witness” and “In view of ths overwhelming proof
of the guilt of the defendants” (Appellee’s Brief.
p. 26) are permitted to be substituted for the law
which applies to the record before us. It is hardly
fair to the defendants for Government counsel to
meet the impact of this error by excusing it with
sentences of transfiguration.

TWELFTH
(Appellee’s Brief, p. 26)

After reading the argument under this division —
of appellee’s brief, we still cannot understand why
Government’s witness Fierstone should have been
permitted to testify concerning the accounting prac-
tices between the Security Building & Loan Associa-
tion and Century Investment Corporation, and then.
deny to defendants’ witness Crane the opportunity
to testify on the same subject (R. 834, 835). Coun
sel for the Government now approach the question —
upon a different theory than they did below. They
now say the question was not sufficiently broad to
meet the requirements of a hypothetical question and

(19)

eft too much to the imagination of the witness (Ap-
pellee’s Brief, p. 26). That was not the basis of
their objections below (R. 834, 835). Then they
shought it called for a conclusion and invaded the
orovince of the jury.

THIRTEENTH
(Appellee’s Brief, p. 27)

Counsel for the Government say the term “af-
‘irmative act”? employed by the trial court in its
charged to the jury “‘is neither a legal nor a technical
erm” (p. 27). Then Judge Wilbur, by comparison,
vas wrong when he said that the term “proper
varning’’ was a term that required definition (Young
ys. Southern Pacific Co., 182 Cal. 869, 190 Pac. 36,
11). We prefer to follow Judge Wilbur.

In respect to the refusal of the trial court to
nstruct upon the failure of proof concerning the
ndictment allegation of paid in capital stock of
3800,000.00, the question is not answered by saying
he trial court instructed the jury that the indict-
nent should not be considered as evidence (Appellee’s
3rief, p. 26). Thus, accepting that postulate, we
save the anomaly that, since the defendants are
harged with criminal misrepresentation that the
vaid in stock of the Security Building & Loan Asso-
ation was $300,000.00, whereas it was only $45,-
100.00 (R. 5, 6), then the failure of proof of this
penaging allegation is compensated by the charge
0 the jury that the indictment should not be con-
idered as evidence. Even after the charge in this
espect, this allegation was still left in the indict-
nent and it was still before the jury.
|

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The difference between $300,000.00 and $45,-
000.00 paid in capital stock was sufficiently import- —

ant, involving as it does criminal fraud, that it should

—

have been eliminated beyond any possibility of con- |

sideration by the jury.

Counsel for the Government do not take issue
with the statement of counsel for the defendants that,
whereas exception to the refusal to give this re-
quested instruction was saved, it was inadvertently
omitted from the bill of exception (Appellants’ Brief,
p. 106). In view of the seriousness of the error,
we respectfully request the Court to consider this
assignment of error.

FOURTEENTH

(Appellee’s Brief, p. 28)
Counsel for the Government here confuse the

schemes with the physical acts of mailing. The
difference is important.

This amazing statement appears in the brief of

counsel for the Government, speaking of co-schemers:

“He may not know what his partners are
doing but he is bound by their acts’. (p. 29).

The cases cited support no such statement, and
it is at war with every concept of American juris-
prudence. The indictment itself, in respect to the

mailing of the indictment letters, alleges that de

fendants did such acts “knowingly” (R. 611, 612,
618, 620, 622, 624, 625, 630, 683, and 635).

The testimony of the witness Perkins quoted by

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ounsel for the Government (Appellee’s Brief, p. 31)
hows defendants’ connection with the corporations
n point of time. It parallels the testimony of the
rovernment’s witness Hobbs, who was an officer
f the corporation (R. 582). Perkins himself tes-
ified :

“The orders for the Tucson office came
from the Phoenix office when Archie was
here * * * came from Jesse H. Shreve, Archie
Shreve or when Dan Shreve was here’. (R.
636).

“At the time Archie Shreve was here he
was in the same capacity, as far as I was
concerned, as Dan was afterwards. When Dan
came over he stepped in where Archie left
off, which was in the first part of January,
1930. Then Archie stepped out of the pic-
ture and Dan moved in’. (R. 6388).

Every indictment letter was mailed in 1931 and
ince Perkins, as appears above, testified that Dan
ame over in the first part of January 19380, obvi-
usly the letters were mailed during the adminis-
ration of the affairs of the corporations by Dan
shreve, Perkins and Hobbs.

We repeat, as we stated in the opening brief,
hat the evidence of mailing is not sufficient to
rove beyond a reasonable doubt that the defendants
fesse H. Shreve and Archie Shreve mailed the in-
lictment letters, or knew that they were mailed.

CONCLUSION

The errors assigned, and arguments predicated

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thereon, as set forth in appellants’ opening brief,
have not been met by the brief of Government coun-
sel. The law of the case is virtually conceded bi
Counsel for the Government, and, as between all
counsel, the facts are singularly free from dispute.

For all the reasons now before the Court, de-
fendants again respectfully request that the reli
prayed for in their opening brief be granted.

Respectfully submitted,

LESLIE C. HARDY,
Attorney ‘for Appellants
Jesse H. Shreve and Archie C. Shrev
605 Title & Trust Building,
Phoenix, Arizona
GEORGE H. SHREVE,

Washington Building,
Los Angeles, California

On the Brief.